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Transcript of SEP - West Virginia Judiciary - Supreme Court of Appeals ... THE SUPREME COURT OF APP ~ OF f ST...
IN THE SUPREME COURT OF APP ~ OF f ST 1e'GIN~ KRISTOPHER 0: and
CHRISTINA 0 SEP 2 0 2010 Petitioners,
v.
In Prohibition, No. _____ _
THE HONORABLE JAMES P. MAZZONE, Judge of the 1 st Judicial Circuit, and WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Respondents.
VERIFIED PETITION FOR WRIT OF PROIDBITION FROM THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA
Civil Action No. 08-CJA-31
KRISTOPHER A N1l CHRISTINA 0 By counsel:
~\ \ \ I
Teresa C. Toriseva, Esquire (WVSB# 6947) ._.
Toriseva Law 1446 National Road Wheeling, WV 26003 Telephone: (304) 238-0066 Facsimile: (304) 238-0149
TABLE OF CONTENTS
TABLE OF AlTTHCIRlTIES ......................................................................... iii
VERIFIED PETITION FOR WRIT OF PROHIBITION ............................................ 1
MEMORANDUM OF LAW CITING RELEVANT AUTHORlTIES ............................ 2
I. FACTUAL AND PROCEDURAL BACKGROUND ............................ 2
II. JURlSDICTION AND STANDARD OF REVIEW ................................ 6
III. ARGUMENT ............................................................................ 7
A WRIT OF PROHmITION SHOULD BE GRANTED TO REQUIRE RESPONDENTS TO SHOW CAUSE WHY THE MARCH 29 ORDER AND THE MAY 18 ORDER SHOULD NOT BE VOIDED ............................................. 7
1. The Circuit Court exceeded the bounds of its legitimate authority in issuing the March 29 Order, prior to which Petitioners (foster parents) were not afforded notice and the opportunity to be heard ........................... 7
2. The Circuit Court exceeded the bounds of its legitimate authority in issuing the May 18 Order, which denied Petitioners (foster parents) the right to intervene .... : ................................................................ 10
a. Petitioners had standing as current foster parents at the time of the filing of their Motion to Intervene ................................................. 10
b. In considering the best interests of Destiny D., the Court incorrectly deemed Petitioners to be fonner foster parents ..... ; .......................... 11
c. Petitioners' intention to adopt Destiny D. was communicated to, and understood by, the DHHR on multiple occasions prior to and after the tennination of parental rights ...................... 12
d. The only statutory preferences with regard to adoption of children in the legal custody
1
of the State involve grandparents and reunification of siblings; no such statutory preference exists for blood relatives generally ............................................................. 14
3. Petitioners have no other adequate means, such as direct appeal, to obtain the relief desired .............................. 16
4. Petitioners will be damaged or prejudiced in a way that is not correctable on appeal ...................................... 16
IV. RELIEF REQUESTED ............................................................... 17
VERlFICATIONOF CHRISTINA 0 ..................................................... 18
MEMORANDUM OF NAMES AND ADDRESSES ............................................. 19
ADDENDUM OF EXHIBITS ............................................ , ............................ 21
EXHIBIT A-MAY 18 ORDER OF THE CIRCUIT COURT
EXHIBIT B-AFFIDA VIT OF TERESA C. TORISEV A
EXHIBIT C-AFFIDA VIT OF CHRISTINA 0
CERTIFICATE OF SERVICE ......................................................................... 22
ii
TABLE OF AUTHORITIES
Cases
State ex reI. Lynn v. Eddy, 152 W.Va. 345, 356, 163 S.E.2d 472 (1968) ................................................ 6
Norfolk & W. Ry. V. Pinnacle Coal Co., 44 W. Va. 574; 30 S.E. 196 (1898) ............................................................ 6
State ex reI. Williams v. Narick, 164 W. Va. 632, 635, 264 S.E.2d 851 (1980) ................................................ 6
State ex reI. Hoover v. Berger, 199 W. Va. 12,483 S.E.2d 12 (1996) ......................................................... 7
Woodall v. Lauri~ 156 W. Va. 707, 195 S.E.2d 717 (1973) ....................................................... 7
State ex reI. Treadway v. McCoy, 189 W. Va. 210, 429 S.E.2d 492 (1993) ............................................. 8,9, 13
State ex reI. Kutil v. Blake, 223 W. Va. 711, 720-21, 679 S.E.2d 310 (2009) ....................................... 9, 15
In re Jonathan G., 198 W.Va. 716,482 S.E.2d 893 (1996) ................................................. 9, 11
In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005) ......... '" ........................................ 9
In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315 (1999) ............................................... 10, 11
In re Carlita B., 185 W.Va. 613,408 S.E.2d 365 (1991) .................................................... 11
Napoleon S. v. Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005) ................................................... 14
Statutes
. W. Va. Code § 53-1-1. .............................................................................. 1, 6
111
"
W. Va. Code § 49-2-14(c) ...................................................................... 5, 12, 13
W. Va. Code § 49-6-5a(c) ............................................................................ 7, 8
W. Va. Code § 49-3-1(a)(3) ....................................................................... 14, 15
W. Va. Code § 49-2-14(e) ........................................................................ 14, 15
W. Va. Code § 49-2-14(f) ........................................................................ 14, 15
W. Va. Code § 49-6-5a(b) ............................................................................. 15
Rules and Regulations
Rule 14(a) of the West Virginia Rules of Appellate Procedure ............................... 1, 6
IV
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
KRISTOPHER 0 , and CHRISTINA 0
Petitioners,
v.
THE HONORABLE JAMES P. MAZZONE, Judge of the 15t Judicial Circuit, and WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES,
Respondents.
Upon Original Jurisdiction In Prohibition, No. ____________ __
VERIFIED PETITION FOR WRIT OF PROHIBITION
NOW COME the Petitioners, Kristopher and Christina 0 , by and through
counsel, Teresa C. Toriseva, Esquire, pursuant to the provisions of Article VITI, Section
Three of the West Virginia Constitution, W. Va. Code § 53-1-1, et seq., and Rule 14(a) of
the Rules of Appellate Procedure for the Supreme Court of Appeals of West Virginia, and
respectfully request that this Honorable Court issue an order directing Respondents to show
cause (1) why the Circuit Court's Order of March 29, 2010, granting legal and physical
custody of infant Destiny D. to her paternal aunt, should not be voided by granting this
Verified Petition for a Writ of Prohibition and (2) why the Circuit Court's Order of May 18,
2010, denying Petitioners' Motion to Intervene in the matter of infant Destiny D., should not
be voided by granting this Verified Petition for a Writ of Prohibition. In support hereof,
Petitioners state and aver as follows:
MEMORANDUM OF LAW CITING RELEVANT AUTHORITIES
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2008, the infant Destiny D. was born five weeks premature to a drug
abusing mother. On April 28, 2008, the West Virginia Department of Health and Human
Resources ("DHHR") filed a Petition for Relief from Parental Abuse and Neglect with the
Circuit Court of Ohio County, West Virginia (the "Circuit Court"). Upon being provided
legal custody of Destiny D. by the Circuit Court, the DHHR placed the infant in the foster
care of Kristopher and Christina 0 . Petitioners, following her discharge from the
hospital on May 6, 2008. Petitioners were advised by the DHHR that Destiny D. was born
testing positive for cocaine. Destiny D. remained in the continuous foster care of Petitioners
at all times prior to the Circuit Court's Order of March 29, 2010, as discussed below, for a
period in excess 'of twenty two (22) months. (See Exhibit A, May 18 Order of the Circuit
Court)
While Destiny D. was in the foster care of Petitioners, the DHHR pursued the
tennination of the parental rights of her biological mother and father. On November 24,
2008, the Circuit Court held a dispositional hearing terminating the parental rights of the
mother of Destiny D. (Jennifer D.) The Circuit Court issued an order terminating the
parental rights of Jennifer D. on November 5, 2009. On December 29, 2009, the Circuit
Court held a dispositional hearing terminating the parental rights of the father of Destiny D.
(Larry W.). The Circuit Court issued an order terminating the parental rights of Larry W. on
March 24,2010. (See Exhibit A, May 18 Order of the Circuit Court)
Around the time of November 24,2008 hearing on the parental rights of Jennifer D.,
Jason Prettyman, Social Services Supervisor for the DHHR and coordinator for the Multi-
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Disciplinary Treatment Team assigned to the case of Destiny D., advised Petitioners that the
parental rights of Destiny D.'s parents were in the process of being terminated.
Mr. Prettyman orally asked Petitioners whether they would be interested in the adoption of
Destiny D. if such parental termination was achieved, and Petitioners responded in the
affirmative by saying "Absolutely." Throughout the remainder of time in which Destiny D.
was in their foster care, Petitioners orally conveyed their intent to adopt Destiny D. to case
workers at the DHHR on multiple occasions, both before and after the tennination of
parental rights for Destiny D. 's biological parents. In particular, Christina 0
reaffirmed her desire to adopt Destiny D. to Terry Beatty, Region One Home Finder for the
DHHR, during a home study conducted to ensure the suitability of Petitioners' home for
continued foster care generally. Petitioners also advised the Guardian ad Litem ("GAL") for
Destiny D. in January 2010 of their intention to adopt the infant. In addition, between
approximately November 2009 and March 29, 2010, Petitioners on multiple occasions
requested that the DHHR conduct a bonding assessment to establish the bond that
Destiny D. had formed with their family. Despite these several and consistent expressions
of Petitioners' intent to adopt Destiny D., at no time during their foster care of Destiny D.
did anyone at the DHHR or otherwise advise Petitioners of any requirement for them to
submit a written application to convey their intent to adopt Destiny D. upon the termination
of such parental rights. Petitioners at all times believed in good faith that they had made
their intention to adopt Destiny D. known to the DHHR. (See Exhibit C, Affidavit of
. Christina Osecky)
Commencing in April 2009, when Destiny D. was one-year old, the DHHR arranged
for Destiny D.'s biological father, Larry W., and her paternal aunt, Kathy M., to have
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weekly 90-minute supervised visits with Destiny D. Prior to that time, Kathy M. had not
had any contact with Destiny D. These visits continued until Larry W.'s paternal rights
were terminated by the Circuit Court on December 29, 2009. Upon information and belief,
Kathy M. was not present during all of the supervised visits held between April and
December, 2009. Following the termination of Larry W.'s parental rights, the DHHR
arranged for Kathy M. to have supervised visits with Destiny D. for two (2) hours per week.
These weekly supervised visits continued through March, 2010. (See Exhibit C, Affidavit
of Christina 0
On March 25, 2010, Petitioners were notified by the DHHR that the DHHR would
take Destiny D. out of their custody and permanently place her into the custody of Kathy M.
on March 29,2010. Petitioners were not notified by the DHHR or any other interested party
that a permanency hearing for Destiny D. would be held in the Circuit Court on March 29,
2010. Petitioners only learned of this permanency hearing when their counsel, Teresa C.
Toriseva, contacted the secretary of the Circuit Court Judge, the Honorable James P.
Mazzone, to request a hearing regarding Petitioners' Motion to Intervene in the ongoing
proceedings. Petitioners, through their counsel, attempted to be heard at what they
subsequently learned to be the permanency hearing by filing a Motion to Intervene with the
Circuit Court on March 26,2010. (See Exhibit B, Affidavit of Teresa C. Toriseva)
On March 29, 2010, Circuit Court Judge, the Honorable James P. Mazzone, held a
permanency hearing in the matter of Destiny D., the abuse and neglect case 08-CJA-31.
Petitioners were not provided an opportunity to be heard at this hearing in order to request
that their Motion to Intervene in the matter, pursuant to Rule 24 of the West Virginia Rules
of Civil Procedure, be granted. Specifically, Petitioners and their counsel entered the
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Courtroom for the hearing and were asked to leave after being advised that the hearing was
closed. Upon information and belief, the Motion to Intervene was discussed on the record
by Judge Mazzone, the GAL, and the Ohio County prosecuting attorney. At the conclusion
of this hearing, which lasted approximately fifteen (15) minutes, the Circuit Court ordered
that Destiny D. be immediately placed in the physical and legal custody of Kathy M. (the
"March 29 Order"). Petitioners were afforded no visitation rights with respect to Destiny D,
notwithstanding their immediate request. (See Exhibit B, Mfidavit of Teresa C. Toriseva)
On April 27, 2010, the Circuit Court held a hearing to consider Petitioners' Motion
to Intervene, and on May 18, 2010, issued an order denying said Motion (the "May 18
Order"). In issuing the May 18 Order, the Circuit Court made the following findings:
1. Petitioners, as former foster parents, lacked standing to intervene in the
matter;
2. Intervention by the Petitioners, at such time and during such stage of the
proceedings, would be contrary to the best interests of Destiny D.;
3. Petitioners had failed to submit a written application for adoption of a foster
. child to the DHHR within thirty (30) days following the termination of the
father's parental rights on December 29,2009, pursuant to W. Va. Code § 49-
2-14(c); and
4. The DHHR is required to pursue, and West Virginia law favors, placement
with blood relatives for abused and neglected children.
See Exhibit A. As a result of the May 18 Order, Destiny D. has remained in the custody of
her paternal aunt, Kathy M., and Petitioners have not been afforded the opportunity to see or
visit the child.
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ll. JURISDICTION AND STANDARD OF REVIEW
This Verified Petition for Writ of Prohibition is filed pursuant to Article VIII,
Section Three of the West Virginia Constitution, granting this Honorable Court original
jurisdiction in prohibition, and pursuant to W. Va. Code § 53-1-1 and Rule 14(a) of the West
Virginia Rules of Appellate Procedure.
"The writ of prohibition shall lie as a matter of right in all cases of usurpation and
abuse of power, when the inferior court has not jurisdiction of the subject matter in
controversy, or, having such jurisdiction, exceeds its legitimate powers." State ex reI. Lynn
v. Eddy, 152 W.Va. 345,356, 163 S.B.2d 472 (1968); W. Va. Code § 53-1-1. "The writ is
no longer a matter of sound discretion, but a manner of right; it lies in all proper cases
whether there is other remedy or not." Norfolk & W. Ry. V. Pinnacle Coal Co., 44 W. Va.
574; 30 S.B. 196 (1898).
"Traditionally, the writ of prohibition speaks purely to jurisdictional matters." State
ex reI. Williams v. Narick, 164 W. Va. 632, 635,264 S.B.2d 851 (1980). "In determining
whether to entertain and issue the writ of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate -.
powers, this Court will examine five factors: (1) whether the party seeking the writ has no
other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3)
whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the
lower tribunal's order is an oft repeated error or manifests persistent disregard for either
procedural or substantive law; and (5) whether the lower tribunal's order raises new and
important problems or issues of law offirst impression. These factors are general guidelines
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that serve as a useful starting point for determining whether a discretionary writ of
prohibition should issue. Although all five factors need not be satisfied, it is clear that the
third factor, the existence of clear error as a matter of law, should be given substantial
weight." Syl. pt. 4, State ex reI. Hoover v. Berger, 199 W. Va. 12,483 S.E.2d 12 (1996).
"Where prohibition is sought to restrain a trial court from the abuse of its legitimate
powers, rather than to challenge its jurisdiction, the appellate court will review each case on
its own particular facts to determine whether a remedy by appeal is both available and
adequate .... " Syi. pt. 2, Woodall v. Laurit~ 156 W. Va. 707, 195 S.E.2d 717 (1973).
A Writ of Prohibition is the appropriate and only available remedy for Petitioners for
the following reasons:
1. The Circuit Court exceeded the bounds of its legitimate authority in issuing
the March 29 Order and the May 18 Order.
2. Petitioners have no other adequate means, such as direct appeal, to obtain the
relief desired; and
3. Petitioners will be damaged or prejudiced in a way that is not correctable on
appeal.
III. ARGUMENT
A WRIT OF PROHIBITION SHOULD BE GRANTED TO REQUIRE RESPONDENTS TO SHOW CAUSE WHY THE MARCH 29 ORDER AND THE MAY 18 ORDER SHOULD NOT BE VOIDED
1. The Circuit Court exceeded the bounds of its legitimate authority in issuing the March 29 Order, prior to which Petitioners (foster parents) were not afforded notice and the opportunity to be heard.
The March 29 Order to remove Destiny D. from Petitioners' foster care, prior to
which Petitioners were provided no notice of any permanency hearing and during which
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Petitioners were afforded no opportunity to be heard, is clear-cut, legal error that is plainly
in contravention of a clear statutory mandate. W. Va. Code § 49-6-5a(c) provides that, in
abuse and neglect cases when the court has determined that reasonable efforts to preserve a
family are not required, "[a]ny foster parent, preadoptive parent or relative providing care
for the child shall be given notice of and the opportunity to be heard at the permanency
hearing provided in this section." Prior to conducting the pennanency hearing for
Destiny D. on March 29,2010, the Circuit Court had terminated the parental rights of both
biological parents of Destiny D, and the DHHR had been pursuing placement for the infant
outside of her immediate faniily. These actions demonstrate that both the Circuit Court and
the DHHR had determined that reasonable efforts to preserve Destiny D. 's immediate family
were no longer required. Once this determination had been made, the requirements of
W. Va. Code § 49-6-5a(c) were triggered, and Petitioners had a right to be notified of said
permanency hearing and to be afforded an opportunity to be heard therein. The failure of
the Circuit Court to provide such opportunity to Petitioners represents a clear violation of
W. Va. Code § 49-6-5a(c).
Furthermore, by ordering the immediate removal of Destiny D. from Petitioners'
-·'0"
foster care without affording Petitioners an opportunity to be heard or with any visitation
rights (transitional or otherwise), the March 29 Order failed to uphold well-established
principles of jurisprudence in cases of abuse and neglect. This Honorable Court "has
repeatedly held that in a contest involving the custody of an infant where there is no
biological parent involved, the best interests of the child are the polar star by which the
discretion of the court will be guided." Syl. Pt. 1, State ex reI. Treadway v. McCoy, 189 W.
8
Va. 210, 429 S.E.2d 492 (1993). In State ex reI. Kutil v. Blake, 223 W.Va 711, 720-21, 679
S.E.2d 310 (W. Va. 2009), this Honorable Court has further held:
The length of time each of the foster children was in the home no doubt would affect the strength of the emotional bond that had developed between each child and Petitioners as well as their sense of comfort and security with their home environment. The only home [the foster child] had ever known in the eleven months of her life had been Petitioners' foster home. Surely bonding had occurred between the infant and Petitioners to a much larger extent than with children who had lived in the household for a much shorter period oftime. We have been clear in pointing out that "[t]he best interests of a child are served by preserving important relationships in that child's life." Syl. pt. 2, State ex reI. Treadway v. McCoy, 189 W.Va. 210, 429 S.E.2d 492 (1993). This concern extends to the relationship a child in foster care has with foster parents. As we held in syllabus point eleven of In re Jonathan G., 198 W.Va. 716, 482 S.E.2d 893 (1996), "[a] child has a right to continued "association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child." Cf. In re Clifford K., 217 W.Va. 625, 619 S.E.2d 138 (2005) (recognizing that a foster parent may attain the status of psychological parent when the relationship is not temporary in duration and exists with the consent and encouragement of a child's legal parent or guardian).
As explained by Chief Justice Davis, writing for the majority, this Court has held that:
... a psychological parent is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child's psychological and physical needs for a parent and provides for the child's emotional and financial support. The psychological parent may be a biological, adoptive, or foster parent, or any other person. The resulting relationship between the psychological parent and the child must be of substantial, not temporary, duration and must have begun with the consent and encouragement of the child's legal parent or guardian.
In re Clifford K., i17 W.Va. at 644. At the time of the removal of Destiny D. from their
foster care, the Petitioners had developed a strong emotional bond with Destiny D. while
caring for her since she was fifteen (15) days old, or for a period in excess of twenty-two
(22) months. Theirs was the only family Destiny D. had ever known, and they were clearly
her psychological parents as such concept has been expounded by this Honorable Court.
Yet they were afforded no opportunity by the Circuit Court to appear and participate in a
permanency hearing ostensibly being conducted to determine the best interests of Destiny D.
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with regard to her pennanetlt placement. Consequently, Destiny D. was placed with a
relative with whom she had had minimal contact prior to such hearing. Petitioners were also
prevented from seeking any visitation rights for Destiny D., preventing the child from
maintaining the only close associations that she had fonned during her life.
In denying Petitioners an opportunity to be heard at the pennanency hearing for
Destiny D., the Circuit Court has exceeded its legitimate bounds of authority, and Petitioners
respectfully request that this Honorable Court issue a rule to show cause why the March 29
Order should not be voided, and, ultimately, a writ of prohibition.
2. The Circuit Court exceeded the bounds of its legitimate authority in issuing the May 18 Order, which denied Petitioners (foster parents) the right to intervene.
The May 18 Order denying Petitioners' Motion to Intervene in the matter of
Destiny D. is predicated upon findings that are clearly erroneous as a matter of law.
a. Petitioners· had standing as current foster parents at the time of the iUing of their Motion to Intervene.
The Circuit Court, citing In re Michael Ray T., 206 W.Va. 434, 525 S.E.2d 315
(1999), held, in part, that Petitioners, as fonner foster parents, lacked standing to intervene
in the matter. Yet the May 18 Order includes no mention of the fact that at the ti.rne
Petitioners initially requested to have their Motion to Intervene heard on March 26, 2010,
they were the current-not former-foster parents of Destiny D. Indeed, the only reason
that Petitioners became fonner foster parents at all was the March 29 Order itself, which
removed Destiny D. from their foster care without providing Petitioners an opportunity to be
heard in connection therewith. This represents a misapplication of the holding of In re
Michael Ray T., in which this Honorable Court addressed the question of whether fonner
10
foster parents were entitled to intervene in abuse and neglect proceedings and decided in the
negative as follows:
Reviewing the circuit court's decision, we note, at the outset, that the Williamses were not actually the foster parents of Michael, Scottie, and Tonya at the time they sought intervention. Rather, they stood in the position of the children's fonner foster parents. Under a strict application of our holding in Jonathan G., which dealt exclusively with the child's then current foster parents, the Williamses are not entitled to intervene in the children's abuse and neglect proceedings. See Syl. pt. 1, 198 W. Va. 716,482 S.E.2d 893.
In applying the holding of this case to the matter at hand, the Circuit Court has in effect
penalized Petitioners for being fonner foster parents when it fact they were made so against
their will only by virtue of a pennanency hearing by the Circuit Court in which they were
not pennitted to intervene. This situation bears little resemblance to the facts of In re
Michael Ray T ., where the foster children in question were removed by the DHHR prior to
any permanency hearing on the basis of an alleged breach of confidentiality by the foster
parents.
b. .In considering the best interests of Destiny D., the Court incorrectly deemed Petitioners to be former foster parents.
Relying on its misapplication of the holding of In re Michael Ray T., the Circuit
Court further found that intervention by the Petitioners, at such time and during such stage
of the proceedings, would be contrary to the best interests of Destiny D. For reasons stated
above, such a flnding was clearly in error to the extent that it failed to consider that
Petitioners were in fact current foster parents at the time they initially sought to intervene in
the March 29 permanency hearing. The rationale for denying intervenor status to former
foster parents was also explained by Chief Justice Davis, writing for the Court, in In re
Michael Ray T. as follows:
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Accordingly, in the interest of expediting the resolution and conclusion of abuse and neglect proceedings, we are hesitant to expand the realm of intervenors to individuals who are no longer guardians or custodians of the children at issue for fear that "'unjustified procedural delays'" undoubtedly would attend the ever-increasing roster of interested participants. See Syl. pt. 3, in part, Jonathan G., 198 W. Va. 716, 482 S.E.2d 893; Syl. pt. 1, in part, Carlita B., 185 W. Va. 613,408 S.E.2d 365.
The facts of this case, however, do not support the treatment of Petitioners as former foster
parents. Rather, Petitioners were the physical custodians of Destiny D. until she was
removed from their foster care pursuant to the permanency proceedings on March 29 in
which they were denied an opportunity to be heard by the Circuit Court. As such,
Petitioners were in effect penalized for the Circuit Court's error.
c. Petitioners' intention to adopt Destiny D. was communicated to, and understood by, the DHHR on multiple occasions prior to and after the termination of parental rights.
The Circuit Court also held in the May 18 Order that Petitioners' failure to file a
"written application" for adoption of a foster child to the DHHR within thirty (30) days
following the termination of the parental rights of Destiny D.'s father on December 29, 2009
constituted grounds for a termination of Petitioners' foster care pursuant to W. Va. Code §
49-2-14(c). Such a finding relies on a narrow reading of W. Va. Code § 49-2-14(c) that
does not comport with the underlying facts of this matter and that is neither in accordance
with the spirit nor the intent of Chapter 49, Article 2 of the West Virginia Code.
In the matter at hand, from the onset of Petitioners' foster care of Destiny D., they
advised the DHHR of their hope and intent to adopt Destiny D. upon the .termination of
parental rights. Furthermore, within thirty days of the termination of the father's parental
rights on December 29, 2009, and indeed, prior to such date, Petitioners specifically
conveyed their intent to adopt Destiny D. to various case workers at the DHHR and to the
GAL. Yet at no time were Petitioners advised by the DHHR of any deadline for the filing of
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a written application concerning the adoption of Destiny D. Instead, Petitioners in good
faith believed that they had made their intention to adopt Destiny D. known to the DHHR.
The decision of the Circuit Court to fmd grounds for termination of Petitioners'
foster care arrangement under W. Va. Code § 49-2-14(c) was in clear error in this matter.
Section 49-2-14(c) provides, in part, as follows:
When a child has been residing in a foster home for a period in excess of six consecutive months in total and for a period in excess of thirty days after the parental rights of the child's biological parents have been terminated and the foster parents have not made an application to the department to establish an intent to adopt the child within thirty days of parental rights being tenninated, the state department may terminate the foster care arrangement if another, more beneficial, long-tenn placement of the child is developed ...
At all times during their foster care of Destiny D. following the termination of the father's
parental rights, Petitioners in good faith believed that they had established their intent to
adopt Destiny D. with the DHHR. Yet the Circuit Court found that grounds for termination
of their foster care had been met solely because they had not "filed a written application for
adoption." Section 49-2-14(c) does not provide for, nor were Petitioners advised of, a
requirement for a "written" application. Moreover, such a hyper-technical reading of the
statute in question runs counter to the spirit and intent of the Legislature in setting forth such
guidelines for foster care. In State ex reI. Treadway v. McCoy, this Honorable Court
characterized the spirit and intent of these laws as follows:
The Legislature has expressly encouraged foster parents who develop emotional ties to the children for whom they care to adopt those children. W.Va. Code 49-2-17 (1978). This section subsidizes adoptions by such foster parents:
Whenever significant emotional ties have been established between a child and his foster parents, and the foster parents seek to adopt the child, the child shall be certified as eligible for subsidy conditioned upon his adoption under applicable adoption procedures by the parents.
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The goal is to encourage foster parents not to treat the children placed in their care as an income producing commodity, but rather to love their foster children as their own. The Legislature wants foster parents to know that if they become attached to a child in their care, the bureaucrats will not come and take the child away. Presumptively, if a child is in a loving and caring foster home, the child will be hanned by being removed from that home and placed in a strange, unknown home. The state, therefore, has implemented a policy encouraging foster parents to adopt their foster children.
State ex reI. Treadway, 189 W. Va. at 213. The decision of the Circuit Court to terminate
Petitioners' foster care arrangement on such a hyper-technical finding neither reflects nor
advances the spirit and intent of the Legislature in this regard. In the matter at hand, the
foster parents did become attached to the child in their care, and vice versa, yet because of
the Circuit Court's erroneous reading of the statute in question and the intent of the
Legislature with respect thereto, bureaucrats did come to Petitioners' home and remove their
foster child to place ·her in a strange home unknown to her.
d. The only statutory preferences with regard to adoption of children in the legal custody of the State involve grandparents and reunification of siblings; no such statutory preference exists for blood relatives generally.
The Circuit Court also held in the May 18 Order that the DHHR is required to
pursue,and West Virginia law favors, placement with a blood relative for abused and
neglected children. This fmding is erroneous as a matter oflaw. In cases where the parental
rights of the biological parents have been terminated or relinquished, West Virginia law
does clearly require the DHHR to pursue placement of a child with any known grandparent
or grandparents. See W. Va. Code § 49-3-1(a)(3); see also Syl. Pt. 4, Napoleon S. v.
Walker, 217 W. Va. 254, 617 S.E.2d 801 (2005). There is also an express statutory
preference for placements that reunite siblings for either foster care or adoption purposes.
See W. Va. Code § 49-2~14 (e)-(t). These statutory preferences do not extend, however, to
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blood relatives generally. This Honorable Court addressed this very question in State ex reI.
Kutil v. Blake as follows:
The only express legislative preferences we have found with particular regard to adoption of children in the legal custody of the State involve grandparents and reunification of siblings. Specifically, West Virginia Code § 49-3-1(a)(3) establishes that a grandparent or grandparents found to be both suitable and willing to adopt a child in DHHR's custody be given priority over other prospective adoptive parents, and West Virginia Code § 49-2-l4(e) & (f) expresses the preference that DHHR reunite siblings for either foster care or adoption purposes if such arrangement is
. available and is detennined to be in the best interests of the children. Neither of these preferences are automatic, however, as they turn on the best interests of the child wh~ is the candidate for adoption.
State ex reI Kutil, 223 W.Va. at 722 n.20. In the matter at hand, Destiny D. was neither
placed with a grandparent nor with a family wherein she could be reunited with any siblings.
The Circuit Court did not include any statutory or case law support for its finding
that West Virginia law provides preference for placement with blood relatives. Such a
finding may be predicated on the language of W. Va. Code § 49-6-5a(b), which provides:
In cases where the department has demonstrated a compelling reason for deteIUlining it would not be in the best interests of the child to return home, the court shall detennine whether the child should be referred for termination of parental rights, be placed for adoption, be placed with a fit and willing relative, be placed with a legal guardian or placed in another planned permanent living arrangement. At the conclusion of each pennanency hearing, the court must enter an order stating whether or not the department made reasonable efforts to finalize the permanen_c:y plan.
While this provision does include the phrase "fit and willing relative", it also provides for
placement with a "legal guardian" such as a foster family. There is, however, no preference
set forth in W. Va. Code § 49-6-5a(b) for any of the alternative placement options identified
therein. Alternatively, the Circuit Court may have been relying on the internal adoption
policies promulgated by the DHHR, which do include preferences for relative placement in
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certain circumstances. Such polices, however, do not carry the weight of law and were not
binding on the Circuit Court when it considered this question.
To the extent that the Circuit Court concluded that there is a clear preference under
West Virginia law for the placement of abused and neglected children with blood relatives
generally, it did so in error.
3. Petitioners have no other adequate means, such as direct appeal, to obtain the relief desired
Petitioners have no adequate means to obtain the relief sought herein. By virtue of
the decision of the Circuit Court to deny intervenor status to Petitioners pursuant to the
May 18 Order, Petitioners do not have standing to file a petition of appeal in this matter.
The May 18 Order also leaves Petitioners without any right to be informed of the status of
Destiny D. or to be heard by the Circuit Court in her regard. Given that all hearings and
files relating to Destiny D. are closed, Petitioners have been left with no access to any
reports or documents relating to the well being of a child that they love as their own.
4. Petitioners will be damaged or prejudiced in a way that is not correctable on appeal.
Absent the granting of the Writ of Prohibition sought herein, Petitioners shall
continue to suffer from the emotional damage associated with losing a child with whom they
had developed strong emotional bonds while becoming her psychological parent during
twenty two (22) months of foster care. If Petitioners are not afforded the opportunity regain
custody of Destiny D. and pursue their consistent intention to adopt her, they shall suffer
irreparable damage.
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IV. RELIEF REQUESTED
WHEREFORE, based upon the foregoing arguments, legal support, and matters set
forth herein, Petitioners respectfully request that this Honorable Court issue a rule directing
the Respondents named herein to show cause (1) why the Circuit Court's Order of
March 29, 2010, granting legal and physical custody of infant Destiny D. to her paternal
aunt, should not be voided by granting this Verified Petition for a Writ of Prohibition and (2)
why the Circuit Court's Order of May 18,2010, denying Petitioners' Motion to Intervene in
the matter of infant Destiny D., should not be voided by granting this Verified Petition for a
Writ of Prohibition. Petitioners also respectfully request that this Honorable Court issue a
rule providing that Destiny D. be placed in their physical custody pending any future
proceedings in this matter by the Circuit Court or otherwise.
TORISEVALAW 1446 National Road Wheeling, WV 26003 Telephone: (304) 238-0066 Facsimile: (304) 238-0149
Respectfully submitted,
KRISTOPHER AND CHRISTINA 0 By counsel
~'41"!~LU_ eresaC. Tonseva, Esquire (WVSB# 6947)
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